THE CONFIRMATION hearings on Judge Robert Bork begin today. At least we hope the subject will be Judge Bork. It hasn't been thus far. The debate instead has been between cartoons. In this ludicrous -- were it not also so nasty and misleading -- process of exaggeration the administration has alternately portrayed Judge Bork as granitic conservative and neutral moderate, depending upon the audience, while many of his principal opponents seem to have confused opposition with annihilation, turning the real Judge Bork into an unrecognizable caricature of evil against whom anything can be said or done in the name of saving the nation. Some of them voted for him, by the way, for the appeals court just a few years ago.
As readers of these columns know, we've had particular trouble with the quality of the arguments from the opponents. The opponents, or a great number of them, have seemed to be trying not so much to debate the qualifications of this judge as to enforce a kind of orthodoxy. There has been a self-indulgent and not always coherent overkill about it: in portraying him as an extremist they have -- some of them -- become extremists themselves. They say Judge Bork is outside the mainstream, and one of the reasons they give is that he would yield too much ground on both public and intimate issues to . . . the majority.
The issues presented by this nomination are not as easy as either side would have them. There are a lot of things about the jurisprudence of the past 50 years that Judge Bork does not like. Some of his challenges to that jurisprudence are deft and healthy. They ought to be met; they elevate the quality of the debate. There are other areas where his elevation to the Supreme Court might indeed pose a risk the Senate should not take. The criticism of him, by its relentlessness, its hype, has drowned and obscured these too.
It is not clear from his writings to what extent he thinks the majority has the right to proscribe what it regards as offensive speech, or to what extent he thinks the government has the right to forbid and punish strong dissent. It is not clear whether he thinks there is any area of intimate behavior beyond the reach of majority will and the police power. It continues to be unclear through reams of writing what he thinks the role of government should be toward racial and other forms of discrimination. In all these areas it is unclear what role he thinks the courts both can and should play as a buffer between the individual and the worst instincts of the society at large. And if the senators do their job instead of tilting at cartoons, maybe we'll find ou